Thanks Jeff. If you want to allow the status quo to be defined by Anne there isn’t anything I can do to stop that other than to object to it. I do not think
that the “status quo” is, or will be, that applications for closed generics will come in and the Board will offer the 3 options again in a new resolution mimicking its prior resolution. In fact, I think there is very little chance of that (approaching zero).
But if you want to adopt a definition of status quo (when the WG was specifically not allowed to talk about what that would be), I’m not sure what else can be done now that we know that this topic will not get more air time on our calls. Maybe
staff can simply drop a footnote to note that not every WG member agrees with Anne’s definition of the status quo? Thanks!
From: Jeff Neuman <jeff@jjnsolutions.com>
Sent: Thursday, July 9, 2020 2:07 PM
To: McGrady, Paul D. <PMcGrady@taftlaw.com>; Aikman-Scalese, Anne <AAikman@lrrc.com>; gnso-newgtld-wg@icann.org
Subject: RE: Latest Version of Compromise Closed Generic Text
Paul.
Anne is not proposing to change the language of how we are defining the status quo for Closed Generics. Anne is merely pointing out that aside from the issue of Closed Generics, the status quo has always been the implementation of that
aspect of the program.
For example, the Application Guidebook stated that applications should be placed in batches of 500 and that’s how they would be processed (first batch 1 I complete, then 2 and so on). However, the way it was implemented in actuality was
on a rolling basis. Thus, if we were not able to reach agreement (which thankfully we have), then the status quo would be “as implemented” and not what was in the Applicant Guidebook.
Example 2, the AGB stated that a skills based test would be used to determine priority of applications. We know that didn’t work out so well and a drawing was held instead. So the default there would be the drawing and not what was in
the Guidebook.
There are many such examples. So Anne is correct.
Your question is precisely the reason why Closed Generics is unique and that is why Anne did not change the text that you recommended on no agreement on the status quo.
So help me understand your objection.
Jeff Neuman
JJN Solutions, LLC
Founder & CEO
+1.202.549.5079
Vienna, VA 22180
From: McGrady, Paul D. <PMcGrady@taftlaw.com>
Sent: Thursday, July 9, 2020 3:01 PM
To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Jeff Neuman <jeff@jjnsolutions.com>;
gnso-newgtld-wg@icann.org
Subject: RE: Latest Version of Compromise Closed Generic Text
Anne, what implementation beside the AGB are you talking about? The Board’s resolution is now spelled out directly (and isn’t implementation anyway - it was
Board-made policy since it was over ride of the AGB which was made by community processes).
Jeff, Anne’s proposal add confusion. I don’t support it.
From: Aikman-Scalese, Anne <AAikman@lrrc.com>
Sent: Thursday, July 9, 2020 1:56 PM
To: McGrady, Paul D. <PMcGrady@taftlaw.com>; Jeff Neuman <jeff@jjnsolutions.com>;
gnso-newgtld-wg@icann.org
Subject: RE: Latest Version of Compromise Closed Generic Text
Paul – For every other issue in the WG, the “status quo” position has been implementation pursuant to the 2012 round. We need to be clear about that. Leaving
that out is actually an attempt to affect outcome since it hides the standard the WG has been working on for years and has applied in every other case.
Anne
From: McGrady, Paul D. <PMcGrady@taftlaw.com>
Sent: Thursday, July 9, 2020 11:54 AM
To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Jeff Neuman <jeff@jjnsolutions.com>;
gnso-newgtld-wg@icann.org
Subject: RE: Latest Version of Compromise Closed Generic Text
[EXTERNAL]
Thanks Anne. This concerns me as we are not here to bless implementation but to make policy. What you are suggesting is that we are proposing that we launch
a round and then have the Board pass another resolution pushing the applications off to the next round (again). That is circular.
Jeff, I would much prefer if Anne’s suggestion does not make it in (can’t live with). It appears to me to be commentary meant to affect outcomes not facts about
what the WG has discussed. Thanks!
Best,
Paul
From: Aikman-Scalese, Anne <AAikman@lrrc.com>
Sent: Thursday, July 9, 2020 1:49 PM
To: Jeff Neuman <jeff@jjnsolutions.com>; McGrady, Paul D. <PMcGrady@taftlaw.com>;
gnso-newgtld-wg@icann.org
Subject: RE: Latest Version of Compromise Closed Generic Text
Jeff – I appreciate your dedication to remaining factual and have one change to your text for that purpose – see this in red below.
Thank you,
Anne
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org>
On Behalf Of Jeff Neuman
Sent: Thursday, July 9, 2020 11:19 AM
To: McGrady, Paul D. <PMcGrady@taftlaw.com>;
gnso-newgtld-wg@icann.org
Subject: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text
[EXTERNAL]
Fair enough. Here is the latest version with Paul’s edits:
No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board[1]
to either (a) “submit a change request to no longer be an exclusive generic TLD”, (b) “withdraw their application” or (c) “maintain their plan to operate an exclusive generic TLD,” which would operate to defer their application to the next round of the New
gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs.” All applicants in 2012 chose either options (a) or (b). The result was that no exclusive generic gTLDs (also
called “Closed Generic” gTLDs) were delegated in the first round.
It was the expectation of the ICANN Board that the GNSO would “develop policy advice concerning exclusive generic TLDs”[2].
Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree
on “policy advice concerning exclusive generic TLDs.”
Questions within the Working Group arose on the impact of a failure to develop any policy advice concerning exclusive generic TLDs. Following the approach the Working Group has taken on other issues where there
is no agreement on changes to the implementation of the new gTLD program, the Working Group would normally recommend applying the Status Quo (i.e., no changes
[Aikman-Scalese, Anne] to 2012 implementation
recommended). However, in this unique case, the Working Group was not able to agree on what the Status Quo actually was given the Board’s expectation that the Working Group would develop policy on this matter. In the absence
of agreement on any policy, the Working Group debated, and was unable to come to agreement on, whether the status quo meant that either (i) Closed Generics would be allowed (as there were no provisions in the final Applicant Guidebook that prohibited them),
(ii) Closed Generics would not be allowed (noting that none were delegated in the 2012 round), or (iii) Closed Generics would be allowed if they serve a public interest goal (in accordance with the GAC Advice that was accepted by the Board).
Jeff Neuman
JJN Solutions, LLC
Founder & CEO
+1.202.549.5079
Vienna, VA 22180
From: McGrady, Paul D. <PMcGrady@taftlaw.com>
Sent: Thursday, July 9, 2020 2:14 PM
To: Jeff Neuman <jeff@jjnsolutions.com>;
gnso-newgtld-wg@icann.org
Subject: RE: Proposed Compromise Language on Closed Generics
Thanks Jeff.
I actually think that is a step backwards as there was no ban (or “not allowed”). There were 3 options, none of which were a ban: 1. Change 2. Defer to
the next Round or 3. Withdraw
Let’s keep trying. How about simply deleting the ( ) on all of the options. They are, ultimately, commentary on the opinions of WG members, so they don’t
really add much. If we can’t do that, then we could say (ii) Closed Generics would not be allowed (noting than none were delegated in the 2012 round). That would be factual.
Best,
Paul
From: Jeff Neuman <jeff@jjnsolutions.com>
Sent: Thursday, July 9, 2020 1:09 PM
To: McGrady, Paul D. <PMcGrady@taftlaw.com>;
gnso-newgtld-wg@icann.org
Subject: RE: Proposed Compromise Language on Closed Generics
Thanks Paul. Each option is followed by a parenthetical explaining why that option could be viewed as the status quo. So while I take your point, we could amend to read:
(ii) Closed Generics would not be allowed (as they were not allowed to proceed in the 2012 round)
Would that work?
Jeff Neuman
JJN Solutions, LLC
Founder & CEO
+1.202.549.5079
Vienna, VA 22180
From: McGrady, Paul D. <PMcGrady@taftlaw.com>
Sent: Thursday, July 9, 2020 1:11 PM
To: Jeff Neuman <jeff@jjnsolutions.com>;
gnso-newgtld-wg@icann.org
Subject: RE: Proposed Compromise Language on Closed Generics
Thanks Jeff. Most of your proposed text is accurate and, therefore, good. However, “…(ii) Closed Generics would not be allowed
(in line with part (a) of the Board’s resolution),…” is not accurate since the Board’s resolution specifically addressed the 2012 Round and not future Rounds, so there is no “in line with.” The inaccuracy jumps out since A would require an applicant to file
a closed generic then later amend it. That would be nonsensical.
A more accurate way to state what I think you are trying to say would simply be “…(ii) Closed Generics would not be allowed…”.
Otherwise, I think this works.
Best,
Paul
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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org>
On Behalf Of Jeff Neuman
Sent: Thursday, July 9, 2020 11:41 AM
To: gnso-newgtld-wg@icann.org
Subject: [Gnso-newgtld-wg] Proposed Compromise Language on Closed Generics
All,
There has been some good conversation on Closed Generics and specifically making sure that we stay completely factual. In light of the e-mails from Paul, Kathy, Anne and others, I wanted to present some text to replace part (a) of the
Closed Generics section. That text is below. A couple of notes first.
- The materials produced by the Working Group are intended to be as objective as possible and not advocacy pieces for one side or the other. I ask that you look at it for its accuracy and not whether the language
makes your position look good or not.
- The Chairs have not cut off any discussions on this topic at all. If you really believe this to be the case, you are free to report this to the GNSO Council Liaison to escalate. But to make it clear, leadership
has assessed that this Working Group is not able to come to agreement on either the substance of this issue, or even on what the default/status quo would be. And the discussions so far on the mailing list have proven us correct. So I would ask that everyone
please refrain from accusations that we have cut off discussions inappropriately, or to escalate the issue.
- The cites for the quotes here are in footnotes (which I did not attach to the body of this e-mail, but can if you would like).
- If the text below is acceptable, then we will make the corresponding changes in the Rationale.
- Finally, I know Kathy you were only on the phone during the last call where Package 6 (which included Closed Generics) was on the agenda and discussed. If you review the chat transcript, you will see that
there was no support for including the terms “ban” or “effective ban” as you raised. Further George Sadowski, who was on the call, in that chat stated that his opinion of what happened was his opinion and not necessarily the opinion of the 2013/2014 Board
which is reflected in the resolution itself. I have the utmost respect for George as he knows from our many conversations, and his views are incredibly important to us, but for the text of the Draft Final Report, we have to include the language of the actual
resolution and supporting documentation.
*********************************************
So, here is the proposed text:
No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board[1]
to either (a) “submit a change request to no longer be an exclusive generic TLD”, (b) “withdraw their application” or (c) “maintain their plan to operate an exclusive generic TLD,” which would operate to defer their application to the next round of the New
gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs.” All applicants in 2012 chose either options (a) or (b). The result was that no exclusive generic gTLDs (also
called “Closed Generic” gTLDs) were delegated in the first round.
It was the expectation of the ICANN Board that the GNSO would “develop policy advice concerning exclusive generic TLDs”[2].
Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree
on “policy advice concerning exclusive generic TLDs.”
Questions within the Working Group arose on the impact of a failure to develop any policy advice concerning exclusive generic TLDs. Following the approach the Working Group has taken on other issues where there
is no agreement on changes to the implementation of the new gTLD program, the Working Group would normally recommend applying the Status Quo (e.g., no changes recommended). However, in this unique case, the Working Group was not able to agree on what the Status
Quo actually was given the Board’s expectation that the Working Group would develop policy on this matter. In the absence of agreement on any policy, the Working Group debated, and was unable to come to agreement on, whether the status quo meant that either
(i) Closed Generics would be allowed (as there were no provisions in the final Applicant Guidebook that prohibited them), (ii) Closed Generics would not be allowed (in line with part (a) of the Board’s resolution), or (iii) Closed Generics would be allowed
if they serve a public interest goal (in accordance with the GAC Advice that was accepted by the Board).
Jeff Neuman
JJN Solutions, LLC
Founder & CEO
+1.202.549.5079
Vienna, VA 22180
Jeff@JJNSolutions.com
http://jjnsolutions.com
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